This week’s National Journal contains the single best analysis of the Duke case yet to appear. Penned by national correspondent and senior writer Stuart Taylor, the article is direct. “When a petty-tyrant prosecutor has perverted and prolonged the legal process without disclosing his supposed evidence, and when academics and journalists have joined in smearing presumptively innocent young men as racist, sexist brutes—in the face of much contrary evidence—it's not too early to offer tentative judgments.”
The article describes a rogues’ gallery headed by Mike Nifong, condemned for “gross prosecutorial misconduct” in Taylor’s earlier examination of events in Durham. But Taylor does much more than simply discuss the case: he now turns his attention to the behavior of Duke and the national media as well. He correctly characterizes the document produced by William Bowen and Julius Chambers as an attempt to “slime the lacrosse players in a report . . . that is a parody of race-obsessed political correctness.” The Group of 88 earns a spot in Taylor’s rogues’ gallery for “exuding the anti-white racism and disdain for student-athletes that pollutes many college faculties,” all while “treating the truth of the rape charge almost as a given.” And he faults the national media for having “published grossly one-sided accounts of the case while stereotyping the lacrosse players as spoiled, brutish louts and glossing over the accuser's huge credibility problems.”
Taylor concludes that “the available evidence leaves me about 85 percent confident that the three members who have been indicted on rape charges are innocent and that the accusation is a lie.” And his piece went to press before three revelations in the last four days: that despite North Carolina law forbidding prosecutors from intentionally avoiding “pursuit of evidence merely because he or she believes it will damage the prosecutor's case or aid the accused,” Nifong had inexplicably failed to check the incident-night records of the accuser’s cellphone, which the authorities have possessed for eight weeks; that when Nifong publicly rationalized the lack of DNA evidence by suggesting that the attackers wore condoms, he apparently contradicted the accuser’s own initial version of events; and that, despite suggesting to Newsweek that the players might have given the accuser a date rape drug, he declined to turn over a toxicology report to the defense. None of these items should increase public confidence in a prosecutor for whom “rogue” might turn out to be an overly charitable description.
Taylor also spoke to Kerstin Kimel, a former National Defensive Player of the Year in college women’s lacrosse and the current coach of the Duke women's lacrosse team (which on Saturday earned a spot in this year’s Final Four). The men’s players, she noted, “made a very bad decision in hosting the party and hiring strippers. But I will tell you they are great kids. There is a strong camaraderie between our teams, and my players—being smart, savvy young women—would not associate with them if they felt on the whole, there was an issue of character." Kimel added that the actions of professors like the Group of 88, and the silence of their faculty colleagues, attracted her players’ notice. "Being at an elite university," she observed, "where every side of every issue is debated, my kids were shocked, disillusioned, and disappointed that their professors and the university community were so one-sided in their condemnation of the lacrosse players."
Seventy days after the incident, Kerstin Kimel is, to my knowledge, the one and only full-time Duke administrator, professor, or coach who, in his or her own, voice has publicly said anything positive about any member of the men’s lacrosse team’s academic performance, athletic skill, or personal characteristics.
Academics, even academic institutions, are supposed to be open to reviewing new facts and adjusting their behavior and beliefs accordingly. Academic administrators, of course, desire above all else to avoid controversy. So confronting a prosecutor whose initial public relations burst suggested overwhelming, unimpeachable evidence of a crime surrounding an incident that unquestionably involved difficult-to-defend, though perhaps all too common, behavior (drinking, strippers), it’s easy to rationalize the early actions of Duke president Richard Brodhead (suspending the team’s games and then season, even scapegoating Coach Mike Pressler). Less explicable was Brodhead’s mid-April refusal to protest Nifong’s sending police to campus to question his own institution’s students outside the presence of their counsel. And the current party line at Duke, perhaps best reflected in the Bowen/Chambers report, is tough to defend, with facts frozen in place circa March 28, when the district attorney’s version of events seemed possibly credible and many viewed Nifong as courageous rather than a rogue.
Another manifestation, sadly, of this current Duke line is a recently published article, “A Spring of Sorrows,” in Duke Magazine. The magazine is an official publication of the university; its publisher reports to the senior vice president for alumni affairs, who in turn reports to Duke president Richard Brodhead. So it’s safe to say that messages of which Brodhead strongly disapproves do not appear in Duke Magazine.
The article contained quotes from four Duke professors, appropriately beginning with the head of the faculty senate. Then article readers heard from Anthropology professor Orin Starn, who claimed that Duke athletes receive “education lite”; previously, Starn had singled out the lacrosse team for particular condemnation: “Unlike at least some of the men's lacrosse players, most Duke athletes are smart, delightful and hard-working.” Making Starn appear moderate by comparison are the only other professors quoted in the article: Peter Wood and Houston Baker, the faculty’s two most outspoken critics of the men’s lacrosse team. Their comments are predictable, and, as more and more facts and procedural violations about the case have come to light, increasingly unsustainable.
Despite the monolithic negative faculty attitudes portrayed in the article, the Coleman Committee managed to interview 10 professors who had taught sizeable numbers of lacrosse players. Nine had wholly positive or neutral comments about team members. (The committee's report cast strong doubts upon the credibility of the tenth professor, Wood, a fact unmentioned in the article.) The report also detailed the very strong academic performance by the team members—among the best of any Duke team—calling into question, to put it mildly, the impressions of Professor Starn. The voices of Starn, Wood, and Baker are critical aspects of the campus culture. Yet while the article mentions Peter Lange’s rebuke of Baker's public letter urging due process be set aside for the lacrosse players’ enrollment at Duke, it contains no discussion of how subsequent revelations in the Coleman Committee report badly weakened the statements of Wood and Starn. Professors making public statements in a high-profile case that later turn out to be intellectually dubious strikes me as a significant item in any examination of campus culture.
To give a sense of how the Duke Magazine article handled evidence contradicting the administration’s current party line, it’s illuminating to compare the Coleman Committee’s analysis of the team’s academic performance with the article’s description of the report. The report noted the following:
The Committee surveyed ten members of the Duke faculty in whose courses a significant number of lacrosse players have enrolled. With one exception, those members of the faculty who have been able to identify lacrosse players in their classes report that the students have been engaged and “certainly have caused no problems.” The professors report that the students appear to take their academic obligations seriously. Two of the professors told the Committee that when the players had to miss class, they appropriately notified the professor and completed any make-up work. One instructor thought the lacrosse players were willing to defend unpopular positions in class, but had not been disruptive in any way. The students were generally described as polite. Two professors noted that the players tended to “move as a group.” One of these professors separated them in class, “simply because a ‘team’ in a classroom is a particular energy; but this is not different from other team members taking classes together.” One professor mentioned that he did not remember “any race or gender related problem caused by this group in my class.” Several of the professors we contacted were not aware that they had lacrosse players in their classes. There have been no charges of academic misconduct against any member of the team . . . Lacrosse players also have performed well academically. In 2005, twenty seven members of the lacrosse team, more than half, made the Atlantic Coast Conference’s Academic Honor Roll, more than any other ACC lacrosse team. Between 2001 and 2005, 146 members of the lacrosse team made the Academic Honor Roll, twice as many as the next ACC lacrosse team. The lacrosse team’s academic performance generally is one of the best among all Duke athletic teams. (The ellipsis section called into question the credibility of Professor Wood’s highly negative attitude toward the team.)
Here is how the Duke Magazine article characterizes the above material:
Such [negative] concerns [articulated by Professor Wood] notwithstanding, the faculty committee set up to review the lacrosse program painted a more nuanced picture. The comittee [sic] surveyed faculty members whose courses included significant numbers of lacrosse players. Broadly speaking, those faculty members who were able to identify lacrosse playes [sic] found that they took their academic obligations seriously—even as they tended to stick together in class.
One positive item tempered by one vague comment presented in a negative (“even as”) fashion, lacking the context of the professor’s qualification that the lacrosse team sticking together was no “different from other team members taking classes together.” No mention of the team’s impressive academic performance, as compared to other Duke teams or other lacrosse teams in the ACC. No mention that professors reported no race- or gender-related problems from team members in class. No observation on how, given some surveyed professors didn’t even realize they had large numbers of lacrosse players in their classes, it stands to reason these faculty members simply viewed the players as typical Duke students.
Perhaps two percent of all Duke graduates will read the Coleman Committee report. Duke Magazine’s characterization of that report, on the other hand, has been sent to all alumni.
Even more disturbing was the article’s examination of student attitudes regarding post-March 13 campus culture. The piece contained quotes on the case from only one student—Nick Shungu, an African-American senior. Shungu, who comes across as passionate and very intelligent, remarked that his friends considered themselves "extremely vulnerable" at Duke (not because they lived in a jurisdiction whose chief prosecutor doesn’t adhere to basic state procedures, but because the accuser’s allegations confirmed the pervasive racism at Duke.) He added his hope for the university to issue "an acknowledgement of sympathy for the alleged victim." The article also included a lengthy discussion, filtered through the head of the Duke Women’s Center, about sexual misconduct by male Duke students and the dislike of some Duke women for the campus party scene. No comments from Kimel here, nor any mention of the Coleman Committee’s conclusions regarding the lacrosse team’s positive treatment of women students and staffers on campus. Nor was there any mention of articles and editorials in the campus newspaper and other publications that as the spring term progressed, a groundswell of student support developed for the lacrosse players--or that, according to the student newspaper, views such as Shungu's fell way outside the mainstream of student opinion.
I emailed the author of the article, Robert Bliwise, to express my concerns about the piece’s imbalance, and he was gracious enough both to send me a thoughtful reply and to consent to my request that I reproduce the section below. He said that, “The main intent here was to discuss the issues of campus culture brought to the surface by the initial Buchanan Blvd. incident and its aftermath, not to gauge the particulars of the (confusing and ever-unfolding) legal case. So the notion of introducing the voices of those who ‘sympathized with the team members' plight’--or, for that matter, the voices of those whose focus might have been seeking more severe university action against the team members--seems irrelevant in this context. The point of the story was not to gauge support or lack of it, but to explain, clarify, and contextualize what had been reported.”
If Baker, Starn, Wood, and Shungu did not constitute “the voices of those whose focus might have been seeking more severe university action against the team members,” then who did? (I’m unaware of any member of the Duke community whose public criticism of the men’s lacrosse team has been more intense.) Apart from the unusual portrayal of the Coleman Committee report, the article finds no defenders of the lacrosse team, and goes off campus to find a defender of the athletic program, Duke graduate Jay Bilas of ESPN. Kerstin Kimel obviously represented an on-campus point of view that differed from those in the article; so too did editors of the campus newspaper.
Moreover, a critical—I believe the critical—issue of campus culture exposed in the “aftermath” of the lacrosse incident is wholly unmentioned in the article: that, to my knowledge, 70 days after the incident, not even one Duke administrator or faculty member has publicly questioned the procedural irregularities that have marred Nifong’s handling of the case—despite the traditional celebration in the academy of respect for proper procedures, fair play, and the impartial evaluation of evidence.
The closest parallel to this emerging Duke party line is the performance of former White House press secretary Scott McClellan during the Fitzgerald-Plame investigation. For two years, McClellan functioned as a kind of human punching bag in press briefings, saying that he couldn’t comment on “ongoing legal matters.” Everyone understood, though, that he really meant he wouldn’t entertain questions about possible misconduct by administration officials. He had no problem with saying positive things about Karl Rove, Scooter Libby, or Dick Cheney. At Duke, there seems to be a claim that professors, administrators, or the alumni association don’t consider responses to “ongoing legal matters” appropriate in their ongoing examination of campus culture. Quite apart from the fact that any student of the McCarthy or civil rights eras could discuss how professors or colleges have long, and appropriately, offered contemporaneous critiques of procedural abuses in “ongoing legal matters,” it’s clear this prohibition really applies only to positive remarks about members of the men’s lacrosse team. Critical commentary, of any type, even if contradicted by evidence in the Coleman Committee report, is perfectly acceptable, and even reproduced in such items as the Bowen/Chambers report or the alumni magazine.
There’s one big difference, though, between McClellan and Duke. McClellan’s job was to defend the actions of the President and his advisors as effectively as possible. The last I looked, neither the Duke administration nor its faculty had any obligation to do Nifong’s dirty work for him. Indeed, the district attorney has proven more than capable of handling that task himself.
Over the past two months, one of two equally horrific events has occurred in Durham. The first is that three Duke students brutally raped a defenseless woman; and, in the aftermath, more than 40 other Duke students have participated in a (stunningly effective) conspiracy to prevent facts about the crime from coming to light. The second is that a prosecutor, for personal or political reasons, has perpetrated a massive miscarriage of justice, acting as if the state bar’s ethical and procedural regulations don’t apply to him; and that Duke administrators and faculty members abetted his crusade, perhaps unwittingly, by declining to use their influence to demand procedural fair play for the school’s own students—and, in some cases, by taking actions that, as Kerstin Kimel and Stuart Taylor pointed out, suggested they believed the worst of the lacrosse players.
If Taylor, hardly a figure known for rash or intemperate judgments, proves correct in his estimate of the embarrassingly weak basis of Nifong’s case, Kimel won’t be surprised. Nor will the Duke undergraduates who came out in support of the accused players. Most others at Duke, however, will have to take a hard look at their conduct during “a spring of sorrows.”
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